Law: Who's to Blame for Kolob Creek?

May 2, 2004
Outside Magazine
Outside magazine, May 1994

Law: Who's to Blame for Kolob Creek?

Survivors of a fatal Utah canyon trip point the finger at "the people who were supposed to know"
By Clint Willis

Mark Brewer still has nightmares about Kolob Creek, but he has no doubt about this: Neither he nor his two friends who died there in a July 1993 canyoneering mishap did anything wrong. "We knew if the water was high the canyon wouldn't be safe," says Brewer, a 36-year-old advertising executive from Salt Lake City. "The park said it was fine. It wasn't."

To underscore that point, Brewer, along with four of the five teenage boys who made the trip and the survivors of the two victims, has filed 13 wrongful-death and personal-injury claims against the U.S. Department of the Interior and Zion National Park, whose northern boundary abuts the brief stretch of Kolob Creek Canyon where the tragedy played out. At the heart of what is believed to be a multimillion-dollar claim (neither side will reveal the amount) is a big difference of opinion about who screwed up. Brewer says Zion rangers should have warned his group that spring-runoff release from an upstream dam had made their planned route unsafe. Park officials are under orders not to talk, but in the past Zion spokesmen have been adamant that the park told the group to expect "high, cold water." Some experienced observers--such as Salt Lake City-based guide Dennis Turville, who made the first descent into Kolob Creek Canyon in 1978--are taking an equally dim view of the charges, for reasons that are partially driven by fears that, as canyoneering attracts more participants, other beginners will get into the same kind of trouble.

"Anyone with half a brain wouldn't have brought those kids in there," says Turville. "And once they got there, they made a series of stupid mistakes."

More than likely, the entire debate will wind up before a jury. The Interior Department has until July to respond to the filing, which is required by the Federal Tort Claims Act before Brewer and company can go to civil court. (Their attorneys say that if the claims aren't paid in full, the group will sue.) Meanwhile, the case is being watched at other federal sites where canyoneering is popular. According to Jeff Riffer, a liability expert and author of Sports and Recreational Injuries, this is the first canyoneering-related liability action against a national park, and a large cash award could influence permit policies across the West. At the moment these tend to be based on general assessments of whether hikers are equipped to go into the backcountry areas where canyons are found, but Riffer says a high-profile win by Brewer's side might inspire "some parks to require stricter permits."

Like similar claims in other high-risk outdoor sports, this one also raises questions about where personal responsibility begins and ends. These are especially notable with canyoneering because the pursuit is thought to be in the midst of a growth spurt. How much of one is hard to say; this impression, and the idea that armies of tyros are hitting the rocks, is based entirely on anecdotal evidence from rangers and guides. "No one knows how many people are doing it," says Minneapolis-based canyoneer Ken Storm Jr., "but it's obvious that more people are exploring canyons and that too many of them think it's just an extension of backpacking."

Unlike climbing, canyoneering has no governing organization, no body of data on accidents, and no clearly defined skill standards. How-to books often focus more on sites and access rules than on the dangers, and old hands like Turville--who says he's had to help rescue stranded parties during his last three trips to White Canyon in Utah--worry that the popularizers are glossing over the hard realities, which include everything from rattlesnakes to hypothermia. The sport often entails rappelling into steep-sided gorges, negotiating icy rivers, and climbing rock walls that may require technical skills. Flash floods, which occur in the sport's late-summer prime season, are an even greater hazard.

"<P>The people who should learn most from this accident are Boy Scout and church groups," says Turville. "They often have leaders who don't know what they're doing." He adds another cautionary note that is especially relevant to the Kolob Creek incident: Hikers shouldn't enter a canyon unless they're reasonably certain they can get out. "Think of it," says Turville, "as inverted mountaineering."

Of the adults on hand with Brewer--trip leader David Fleischer, 27, and Kim Ellis, 37--Fleischer was the most experienced outdoorsman, and he'd been to Kolob Creek only once. The five teenagers, members of a church youth group in Salt Lake City, had received rappelling lessons from Fleischer, and Brewer says everyone involved was a capable swimmer.

The trip had originally been slated for June, but Fleischer rescheduled when park officials warned him that Kolob Creek was too high. And so, on the morning of July 14, the group drove from Salt Lake City to Zion headquarters. At the crux of the controversy is what happened there. Brewer says Fleischer reviewed his proposed four-day route with a ranger, whose name the Park Service won't release, and was told water levels were normal. "The main concern was that we take out our toilet paper," says Brewer.

There is reason to suspect that someone at Zion knew conditions might be unsafe. Ron Thompson, district manager of the Washington County Water Conservancy District, which controls the Kolob Reservoir, says his June records show that a ranger had been told weeks earlier that the reservoir would be releasing large amounts of runoff into the creek through the spring and summer. "Anyone familiar with the area should have known that water would be up," says Thompson, who adds that Brewer's party ought to have noticed the same thing before it went in.

Ironically, after rappelling 65 feet down the canyon's sheer sandstone wall, the hikers found the water only ankle-deep. At the end of a brief wade downstream, however, the creek bottom suddenly fell away, sending the eight into swift current that forced them along for 75 yards. "I asked Dave [Fleischer] if this was what he remembered," says Brewer. "He said it wasn't. He said it was ludicrous for us to be in there at all."

Fleischer was right, but huge whirlpools and powerful currents made retreat impossible. The group had neither the skills nor the equipment to climb back up the wall, so Fleischer, who thought he remembered an exit spot farther downstream, led forward in single file. Ellis drowned at the base of the first waterfall, where he helped save Fleischer. The survivors--including Ellis's 14-year-old son, Shayne--propped his body against a log and moved on, rigging safety lines to negotiate a pair of ten-foot falls. Fleischer drowned when he tried to retrieve a pack that got stuck in a whirlpool. With two people dead in a space of less than three hours and 300 yards, Brewer decided to stay put. Four days later, a helicopter pilot located the survivors. The rescue, carried out by the Park Service and local law enforcement, cost $60,000.

In the accident's aftermath, Zion has asked the Water Conservancy District to inform rangers by fax as well as telephone when water is released from the reservoir, but beyond that, says spokesman Denny Davies, the park isn't planning any other immediate policy shifts. Brewer is determined that it will go further; he says one motive for the legal claim is "to get something changed."

"The people who were supposed to know told us to go ahead," he reiterates. "You can't prepare for misinformation."

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